Critically examine the importance of fatwa in Islamic Jurisprudence. In your answer, discuss how social and legal stories contained in Fatwas have been transformed into pieces of jurisprudence.
‘Scholars are the heirs of Prophets, and Prophets neither left behind dinars nor dirhams; rather they left knowledge. He who acquires knowledge has really gained something of great value’ (Shaukat 2009, p.6).
Knowledge is the base of Islam and strongly promoted by God and His Prophets. Islamic ideology provides several ways through which Muslims can seek guidance on unclear religious matters or any type of query and concept to be exacted. Fatwa is one such method, which helps a person to clarify his doubts and confusions by asking a pious scholar. God has explained the complete model of Fatwa in Surah al-Nisa verse 127 which states ‘asking for a definite answer’ and verse 176 states ‘giving a definite answer’ (Cited by Ali 1934). The status of fatwa in religious matters cannot be overlooked, and it has been central to the development of Islamic jurisprudence and most prominently Islamic financing system (El-Gamal 2006). To understand the methodology of law making in Islam, it is important to understand the concept of fatwa and how it has helped in developing laws.
The term fatwa stemmed from the word Afta which means ‘enlighten, newness, clarification’ etc (Kamali 2008). According to Jakob Skovgaard-Petersen, whenever a Muslim is in doubt about issues of religion such as its ethics or law ‘he can consult a specialist for an authoritative opinion on the matter. Such an opinion is called Fatwa. The act of giving a Fatwa is called Ifta or Futya.’ (Skovgaard-Petersen 1997, p.1) The scholar is called Mufti; the question becomes Istifta and the person who asks the question is called Mustafti (Skovgaard-Petersen 1997). According to Sheikh M. S al-Munajjid ‘a mufti must know what is Sahih (authentic), and Da’if (weak), and An-Nasikh wal-Mansukh (the abrogating and the abrogated)’ (Shaukat 2009, p.12). He should have firm religious background, deep insight over classic or contemporary issues, rich life experience, and resounding sense of equability/tranquility. Fatwa ‘is not a binding judgment or verdict- that is for a judge to deliver’ (ed. Najmabadi & Joseph 2003, p.171). Fatwa is often regarded as Islamic judicial system which is a false notion. However, the scope of Fatwa is very wide ranged if compared to Qada (court judgment) and questions on any topic like legal theories, religious philosophy, civic life and/or rules about ‘personal hygiene and proper conduct in all walks of life’ are allowed (Skovgaard-Petersen 1997, p.2). Mughees Shaukat explains that “Qada is binding and enforceable whereas Fatwa is voluntary’ (Shaukat 2009, p.11).
The concept of fatwa has developed gradually, and its importance could be realized from the fact that it dates back to the time of Prophet Mohammad when it was conducted as a question-answer session (Skovgaard-Petersen 1997). Prophet’s verdict was unanimously agreed upon by everyone. After His departure, the responsibility was transferred to the companions of Prophet. The four caliphs were deemed most respected in this regard and majority of fatwas originated in their time. However, there has been conflict between Ulema upon validating the companion’s verdicts. Issues like ‘whether the fatwa of a single companion be recognized as a proof …over the fatwas of other Mujtahidun’ (Kamali 2008, p. 310). Or which Sahabi (companion) should be prioritized in this context because Quran states in Surah al-Imran verse 110 that ‘you are the best community that has been raised for mankind’ gave birth to dispute (cited by Ali 1934, p.44). Nevertheless, jurists from prominent schools of thought proposed different solutions to this conflict. Imam Malik affirms the companions opinion as a Hujjah/proof because they had direct access to the Prophet and acquired profound knowledge on Asbab-ul-Nuzul from Him (Kamali 2008). Hanafi jurist Abul Hassan al Karkhi believed that ‘ijtihad of a companion is not a proof and does not bind the succeeding generation’ (Shaukat 2009, p.9). Abu Hanifia established the criterion that if a companion’s ruling is in conflict with Qiyas, only then it is a proof (Kamali 2008). Hence, it is justified that a companion’s Fatwa is considerable and a source of guidance in legal issues but only when no clear instruction could be found in the primary sources and Ijma (Kamali 2008). Companion’s fatwa cannot be considered as a ‘binding proof’ (ed. Najmabadi & Joseph 2003). In its contemporary form, the mannerism of muftis, context of the queries, mode of conducting fatwas and methodology surrounding the conclusion has substantially developed over time. Now there are authentic juristic councils and Sharia’ah advisory boards all over the world that generate fatwas according to the laws and resolutions that are adjustable to the social circumstances. The most authoritative fatwa issuing authorities of present age include Dar al-Ifta and Al-Azhar University based in Egypt (ed. Najmabadi & Joseph 2003).
Fatwas from renowned muftis have played a prominent part in developing various new concepts in Islamic jurisprudence. For example, Mahmoud A. El-Gamal acknowledges that ‘Fatwa played a central role in the birth of Islamic finance’ (El-Gamal 2003, p.33). Contemporary Islamic Banking was an outcome of the fatwa inspired by the proposals of Humud at the First Conference of Islamic Bank in Dubai 1976 (El-Gamal 2003). The fatwa concluded that an Islamic financing institution is indispensable. It also acknowledged that a thorough procedure of financing in accordance with Sharia’ah must be established so that the issues of mark-up, bank financing and credit are clearly established under a mutually agreed-upon contract. It was through this fatwa that the contract of ‘Murabaha l-il’- amir b-il shira (mark-up sale to the one who ordered the purchase)’ originated (El-Gamal 2003). This mode of financing was strongly supported by bankers and by 1990, a majority of Islamic banks in GCC countries allowed commodity-purchase Murabaha financing to their corporate customers as a form of de facto unsecured loans. Tawarruq (monetization) is another achievement in Islamic banking that could be attributed to Fatwa (El-Gamal 2003). To reduce transaction costs, banks in GCC countries sought guidance from Sharia’ah boards of Islamic Financial Institution and the method of Tawarruq for lowering transaction costs developed. Hence, it was due to the fatwas that various issues related to transactions, bank financing, and conventional financial products like loans and bonds progressed and were included in Islamic jurisprudence (El-Gamal 2003).
Similarly, Fatwas related to organ donation, and transplantation has greatly help in clearing the ambiguities and misconceptions related to its justifiability in Sharia’ah. The Islamic Fiqh Academy and prominent scholars concluded that the verse 32 in Surah al-Maidah that states ‘and if any one saved a life, it would be as if he saved the life of the whole people’ affirms the validity of organ donation and transplantation (cited by Ali 1934, p.70). Thus, in 1988, the Islamic Fiqh Academy generated a fatwa that ‘Organs from the deceased can be transplanted to a patient’ and clearly established the restrictions and conditions in this regard (Ismail et al. 2012).
There have been incidents related to blasphemy in which fatwas were generated against salient authors and the issue received great amount of publicity, thus, popularizing the concept of Fatwa worldwide (ed. Najmabadi & Joseph 2003). Reference could be taken from the fatwa that came from Ayatollah Khomeini in 1989 against the British author Salman Rushdie, who wrote a blasphemous novel named ‘The Satanic Verses’ (ed. Najmabadi & Joseph 2003). Khomeini charged Rushdie with a death penalty, thereby, establishing the punishment for anyone who might be involved in blasphemy. Similar penalties were issued for the Egyptian novelist Naguib Mahfouz and Bangladeshi author Taslima Nasreen for writing blasphemous literatures (ed. Najmabadi & Joseph 2003).
The unique aspects of Fatwa is that it is progressive and continuous. Through this technique, numerous modern-day issues that gave birth to confusion and conflict were settled in the light of Sharia’ah. For instance, sex change is a practice that gained popularity during the 80s. Grand Mufti Shaykh Muhammad Tantawati from al-Azhar confronted a controversial case in this context when a student Sayyid Abd’Allah underwent sex change. Tantawati issued a fatwa in June 1988, declaring that the operation was allowed and obligatory in Islam but only to reveal hidden male/female organs, and if advised by the surgeon, otherwise it is not (ed. Najmabadi & Joseph 2003). The criteria of modest dressing for women in Islam has also been an issue of conflict on the grounds of using just Hijab (dress that covers head and body), or combining hijab with veil (cover for face) and gloves is mandatory. This confusion was resolved by Grand Mufti Tantawati and Mufti Mujahid, who declared that only Hijab was a requirement in Islam, and Niqab (veil) is unnecessary (ed. Najmabadi & Joseph 2003).
Circumcision of females was a common practice in Egypt that was widely supported by renowned muftis, such as Jad al-Haqq of al-Azhar University. However, Tantawi contradicted with Jad al-Haqq, and when he became the grand shaykh ,he banned this practice through a fatwa claiming that there is no evidence in the Quran or Sunnah athat validates circumcision of females ed. Najmabadi & Joseph 2003). Hence, these prominent decisions and other countless fatwas have been fundamental in regulating righteous theories and philosophies of Sharia’ah.
Thus, it can be concluded that fatwa has been an integral force for deriving important resolutions, revolving around Islamic fundamental rules, and retrieving answers on different problems of everyday life. It is also significant for establishing a chronology of fluctuating social norms and traditions. The point of consideration is that nowadays every scholar considers himself as eligible for generating fatwas, which is wrong. True mufti has to fulfill certain criteria and obligations without which a fatwa cannot become a law. In the wake of changing social attitudes, and increasing cross-cultural influences, it is the Muftis and Fatwas which ensure that Sharia’ah prevail in its supreme essence. The societies are progressing rapidly, and so are the conflicts and confusion. It is due to the practice of Fatwa, that various emerging conventions not in accordance with Islamic philosophy were condemned and banned. It can be looked upon as a mode of keeping the Muslim Ummah (world) united and to protect Islamic laws from profanity.
Ali, A, H, 1934, The meaning of the glorious Quran, Islamic Books.
El-Gamal, M, A, 2006, Islamic Finance: Law, Economics, and Practice, Cambridge University Press, England, pp. 32-35.
Ismail, S, Y, Massey, E, K, Luchtenburg, A, E, Claassens, L, Zuidema, W, C, Busschsach, J, J & Weimar, W, 2012, Religious attitudes towards living kidney donation among Dutch renal patients, Medical Health Care and Philosophy, vol. 15, no. 2, pp. 221-227.
Kamali, M, H, 2008, Principles of Islamic Jurisprudence, 3rd ed, The Islamic Texts Society.
Najmabadi, A & Joseph, S (ed.) 2003, Encyclopedia of Women & Islamic Cultures: Family, law, and politics, BRILL, England, pp. 171-174.
Shaukat, M, 2009, General perceptions of Fatwa and its role in Islamic Finance: Islamic Jurisprudence and Legal Maxims, INCIEF, Malaysia.
Skovgaard-Petersen, J, 1997, Defining Islam for the Egyptian State: Muftis and Fatwas of the Dār Al-Iftā, BRILL, England.